Opinion
Index No. 15-600732 Mot. Seq. No. 001 - MotD002 - MotD
05-02-2018
LUIS LUCERO, Plaintiff, v. FAMILY HQ LLC and MICHAEL DAVIS CONSTRUCTION, INC., Defendants. MICHAEL DAVIS CONSTRUCTION, INC., Third-Party Plaintiff, v. EPZ CONTRACTING, INC., Third-Party Defendants. FAMILY HQ LLC, Second Third-Party Plaintiff, v. EPZ CONTRACTING, INC., Second Third-Party Defendants.
LAMBROU LAW FIRM, P.C. Attorney for Plaintiff CONGDON, FLAHERTY, O'CALLAGHAN Attorney for Defendant Davis WADE CLARK & MULCAHY, ESQS. Attorney for Defendant Family HQ LLC SMITH SOVIK KENDRICK & SUGNET Attorney for Third-Party Defendant/Second Third-Party Defendants EPZ Contracting
Unpublished Opinion
CAL. No. 17-01130OT
ADJ. DATE 8-9-2017MOTION DATE 5-3-2017 (001)
MOTION DATE 6-28-2017 (002)
LAMBROU LAW FIRM, P.C.
Attorney for Plaintiff
CONGDON, FLAHERTY, O'CALLAGHAN
Attorney for Defendant Davis
WADE CLARK & MULCAHY, ESQS.
Attorney for Defendant Family HQ LLC
SMITH SOVIK KENDRICK & SUGNET
Attorney for Third-Party Defendant/Second Third-Party Defendants EPZ Contracting
David T. Reilly, Judge
Upon the following e-filed papers read on these motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers dated March 27, 2017 and June 2, 2017; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers dated April 26, 2017. July 21, 2017 and August 1, 2017: Replying Affidavits and supporting papers dated May 9, 2017 and August 9, 2017; Other Memorandum of Law dated March 27, 2017. May 9, 2017 and July 21, 2017; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the pending motions (001 and 002) are combined herein for disposition; and it is
ORDERED that the motion by defendant/second third-party plaintiff Family HQ, LLC for summary judgment dismissing the complaint and all cross claims and counterclaims asserted against it, and for summary judgment on its cross claims against defendant Michael Davis Construction Inc. for contractual indemnification and defense costs, and for breach of contract for failure to procure liability insurance naming it as an additional insured, and on its third-party complaint against EPZ Contracting, Inc. for contractual indemnification and defense costs is decided as set forth herein; and it is further
ORDERED that the motion by plaintiff for summary judgment in his favor on the issue of liability against defendants Family HQ, LLC and Michael Davis Construction, Inc. is decided as set forth herein.
Plaintiff commenced this action seeking damages for personal injuries he sustained on January 6, 2015 at approximately 11:30 a.m. when he fell from the first floor to the basement level of a house being constructed on Mecox Road in Bridgehampton, New York (the "Property"). Family HQ, LLC ("Family HQ"), whose only officers are husband and wife Thomas and Kristin Patrick (the "Patricks"), own the Property. The Patricks entered into a written construction agreement with defendant Michael Davis Corporation, Inc. ("MDCI") as the general contractor, and MDCI entered into a written agreement with third-party defendant EPZ Contracting, Inc. ("EPZ") to do the framing and trim work. At the time of the accident, plaintiff was employed as a carpenter by EPZ.
In his complaint, as amplified by his bill of particulars, plaintiff alleges that Family HQ and MDCI were negligent in failing to provide him with adequate safety devices to protect him from falling in violation of, among other rules and regulations pertaining to construction, Labor Law §§ 240, 241(6) and 200. He also alleges Family HQ and MDCI are liable for common-law negligence. In their separate answers, MDCI and Family HQ each deny liability, interpose several affirmative defenses, including that plaintiffs conduct was the sole proximate cause of his accident and a recalcitrant worker, and each allege cross claims against the other for common-law and contractual contribution and indemnification, breach of contract in failing to procure insurance naming the other as an additional insured, and attorneys' fees. MDCI and Family HQ also each implead EPZ seeking common-law and contractual indemnification. In addition, MDCI asserts a third-party claim against EPZ for breach of contract in failing to procure insurance for its benefit. Issue has been joined in the impleader actions.
Discovery has been completed and the note of issue filed. Family HQ now moves for summary judgment dismissing plaintiffs complaint and all cross claims asserted against it on the grounds that it cannot be held liable based on the homeowner's exemption in the Labor Law statute. Family HQ also seeks summary judgment on its cross claims against MDCI and third-party claims against EPZ. Plaintiff moves for summary judgment on the issue of liability on his Labor Law § 240 claim against Family HQ and MDCI.
EPZ began working at the Property on January 5, 2015, the day before plaintiffs accident. At that time, the foundation had been poured and steel I-beams installed by other trades. On the morning of the accident, plaintiff arrived at the Property with EPZ foreman Robert Vera. EPZ had approximately 15 employees at the Property to start the framing, i.e., to install floor joists on the first level and window frame headers in the basement. Vera assigned plaintiff to install window frame headers.
Immediately prior to the accident plaintiff was on the first floor level at the rear of the foundation, and the tools and materials he needed to perform his assigned task were in the front of the Property. Plaintiff testified he intended to walk across the I-beams to retrieve the tools as he had done several times previously that morning without incident. He explained that walking across the I-beams was quicker than walking around the perimeter of the house. At that time, EPZ employees Jose Alexsi Marquez and Michael Stevenson were installing floor joists. Plaintiff testified he stepped up on an I-beam, and as he approached Marquez, had to walk around him. Plaintiff denies that Marquez said anything to him about the joists not being secured, and proceeded to the other side without incident. On his return with the materials he needed, he stepped on a joist, it collapsed and plaintiff fell to the ground in the basement. According to plaintiff, he was not provided with a harness or any other safety device to prevent him from falling, there were no safety meetings, and he was never informed not to walk on the I-beams. Plaintiff also states that he received all of his instructions from Vera, that no one associated with MDCI told him how to perform the work, and that he never saw the Patricks at the Property.
MDCI, by way of an affidavit by Stevenson, offered a slightly different version of plaintiff s accident. Stevenson asserts that he was an eyewitness to the events leading up to plaintiffs fall, and that Marquez warned plaintiff that the joists were not secured. Stevenson states plaintiff disregarded the warning, passed by Marquez and proceeded across the I-beams. It was on plaintiffs way back across the I-beams that he stepped onto an unsecured joist, and he fell.
Eric Zaczynski, the owner of EPZ, testified he was at the Property on the morning of the accident, but left before plaintiffs accident occurred. He testified that other than EPZ employees, no other trades were at the Property. He also testified that the materials needed for the framing had been delivered to the Property by MDCI and that EPZ provided its own tools and safety equipment. He admitted that other than scaffolding erected in the basement and the availability of ladders at the Property, there were no safety nets or harnesses and lanyards provided to EPZ workers. The lack of these safety devices, Zaczynski conceded, resulted in EPZ receiving OSHA violations for which monetary fines were paid. Zaczynski testified that plaintiff had worked for EPZ for approximately three years, and had been informed of safety protocol, which included a prohibition against walking on I-beams. Similarly, Vera testified that EPZ workers were informed not to walk on I-beams but he was aware they often did. Vera, however, denied that he saw plaintiff walking on the I-beams while at the Property.
Thomas Patrick testified on behalf of Family HQ and has submitted an affidavit in support of the motion for summary judgment. Thomas Patrick testified and asserts in his affidavit that he and his family now live in the house on the Property, which was built for use as their exclusive residence and not for any commercial purpose. Thomas Patrick also states that neither his family members, Family HQ nor any of its officers directed, controlled, supervised or managed any of the construction being performed or supplied any tools, materials or equipment. Additionally, he asserts that the Patricks only visited the Property to observe the progress of the work.
Labor Law § 240(1) and § 241(6) impose a nondelegable duty upon owners and general contractors to provide protective equipment, devices and other adequate and reasonable protection to persons employed in the construction or alteration of a building (see Ross v Curtis-Palmer Hydro Elec. Co. 81 N.Y.2d 494, 601 N.Y.S.2d 49 [1993]; Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219 [1991]; Cannon v Putnam, 76 N.Y.2d 644, 563 N.Y.S.2d 16 [1990]). A contractor, owner or agent will be held strictly liable where a violation of these sections of the Labor Law statute is the proximate cause of a plaintiff s injuries (Ross v Curtis-Palmer Hydro Elec. Co., supra; Rocovich v Consolidated Edison Co., supra; Zimmer v Chemung County Perf. Arts, Inc., 65 N.Y.2d 513, 493 N.Y.S.2d 102 [1985]). Moreover, an owner or contractor may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (Ross v Curtis-Palmer Hydro Elec. Co., supra; Rocovich v Consolidated Edison Co., supra).
Excluded from the strict liability provisions of Labor Law §§ 240 and 241 are owners of one and two-family dwellings who contract for but do not direct or control the work (Labor Law § 240(1); Labor Law § 241; Cannon v Putman, supra; Abdou v Rampaul, 147 A.D.3d 885, 47 N.Y.S.3d 430 [2d Dept 2017]; Assevero v Hamilton & Church Props., LLC, 131 A.D.3d 553, 15 N.Y.S.3d 390 [2015]). Corporate ownership of a property, in and of itself, does not preclude application of the homeowner exception to sections 240 and 241(6) (Assevero v Hamilton & Church Props., LLC, supra; see Baez v Cow Bay Constr., 303 A.D.2d 528, 756 N.Y.S.2d 281 [2d Dept 2003], ly denied 2 N.Y.3d 701, 778 N.Y.S.2d 459 [2004] [defendant corporation entitled to exemption where the project upon which the injured plaintiff was working involved construction of two single-family houses that the sole shareholder of defendant and his family planned to use for residential purposes]).
Labor Law § 200 is a codification of the common-law duty of owners and general contractors to provide workers with a reasonably safe place to work (Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168 [1993]; Banscher v Actus Lend Lease, LLC, 132 A.D.3d 707, 17 N.Y.S.3d 774 [2d Dept 2015]). To be held liable under Labor Law § 200 and for common-law negligence for injuries arising from the means and methods used to perform the work, an owner or general contractor must have authority to exercise supervision and control over the work (Paolchin v Mall Props., Inc., 155 A.D.3d 900, 64 N.Y.S.3d 310 [2d Dept 2017]; Banscher v Actus Lend Lease, LLC, supra). Where a plaintiffs injuries stem from a dangerous condition on the premises, a defendant may be held liable if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition (Paolchin v Mall Props., Inc., supra; Banscher v Actus Lend Lease, LLC, supra).
Here, Family HQ has met the criteria for qualification under the homeowner's exemption; consequently, it cannot be held liable for plaintiffs injuries under Labor Law § 240 or § 241 (see Abdou v Rampaul, supra; Sandals v Shemtov, 138 A.D.3d 720, 29 N.Y.S.3d 448 [2d Dept 2016]). Family HQ has also established that it did not have the authority to control or supervise the means and methods of the plaintiffs work, nor did it have actual or constructive notice of any dangerous conditions at the work site to support the imposition of liability under Labor Law § 200 or for common-law negligence (see Sandals v Shemtov, supra; Banscher v Actus Lend Lease, LLC, supra; Wejs v Heinbockel, 142 A.D.3d 990, 37 N.Y.S.3d 569 [2d Dept 2016]).
Having concluded that Family HQ cannot be held liable necessarily defeats the cross claims for indemnification and contribution asserted against it by MDCI (see Stone v Williams, 64 N.Y.2d 639, 485 N.Y.S.2d 42 [1984]; Tapinekis v Rivington House Health Care Facility, 17 A.D.3d 572, 793 N.Y.S.2d 484 [2d Dept 2005]). A fortiori, plaintiffs cross motion for summary judgment against Family HQ is denied as moot. Family HQ's cross claims against MDCI and its third-party claim against EPZ, however, remain viable.
"A contractor may properly obtain insurance to insure an owner against its own acts of negligence, in contrast to an indemnification provision, which insures an owner against the imposition of vicarious liability based on another party's negligence" (Town of Hempstead v East Coast Resource Group, LLC, 67 A.D.3d 777, 778, 889 N.Y.S.2d 88 [2d Dept 2009]). Here, Family HQ established its prima facie showing of entitlement to summary judgment on its cross claim for breach of contract by demonstrating that MDCI failed to satisfy a contractual obligation to obtain insurance in Family HQ's name as an additional insured. As a result of the breach, Family HQ is entitled to summary judgment on its breach of contract claim and to recover damages from MDCI for costs and attorneys' fees incurred in defending the plaintiffs action to date (see Darowski v High Meadow Co-op. No. 1,239 A.D.2d 541, 657 N.Y.S.2d 457 [2d Dept 1997]). In opposition, MDCI failed to raise an issue of fact.
Family HQ is also entitled to recover attorneys' fees from EPZ. The Independent Contractor Agreement between MDCI and EPZ contains a broad indemnification provision whereby EPZ agreed to "indemnify and hold harmless Michael Davis Construction and the property owner against any claims, damages, losses and expenses arising out of or resulting from performance of sub-contracted work to the extent caused in whole or in part by the negligence of the subcontractor...." This broad indemnification provision must be read to include attorneys fees, even though the provision does not expressly mention such fees (Milani v Broadway Mall Properties, Inc., 261 A.D.2d 370, 689 N.Y.S.2d 203 [2d Dept 1999]). Moreover, the provision does not run afoul of Workers' Compensation Law §11, and thus is enforceable (see Stabile v Viener, 291 A.D.2d 395, 737 N.Y.S.2d 381 [2d Dept 2002]).
Therefore, Family HQ is entitled to summary judgment on that branch of its motion seeking indemnification from EPZ pursuant to the Agreement, but only to the extent that EPZ is to reimburse Family HQ for reasonable attorneys fees incurred in defending the action (see Merchants Mut. Ins. Co. v Saxon Indus., Inc., 170A.D.2d 654, 568 N.Y.S.2d 933 [2d Dept 1991]). The grant of summary judgment, however, is conditional. Where, as here, the party seeking to be indemnified is not negligent, nor had the authority to supervise", direct or control the work that caused the injury (see Brown v Two Exch. Plaza Partners, 16 N.Y.2d 172, 556 N.Y.S.2d 991 [1990]; Naranjo v Star Corrugated Box Co., Inc., 11 A.D.3d 436, 783 N.Y.S.2d 607 [2d Dept 2004]), "a court my render a conditional judgment on the issue of indemnity pending determination in the primary action in order that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed" (Masciotta v Morse-Diesel Intl., Inc., 303 A.D.2d 309, 310, 758 N.Y.S.2d 286 [1st Dept 2003]).
Turning to plaintiffs motion, he has established prima facie entitlement to partial summary judgment on his Labor Law § 240 (1) claim against MDCI. The evidence proffered demonstrates that MDCI failed to provide any safety devices, such as a safety net, harness or lifeline, to prevent plaintiffs fall and that the lack of such devices was a proximate cause of his injuries (see Bland v Manochenani 66 N.Y.2d 452 497 N.Y.S.2d 880 [1985]; Poalacin v Mall Properties, Inc., 155 A.D.3d 900, 64 N.Y.S.3d 310 [2d Dept 2017]; Melchor v Singh, 90 A.D.3d 866, 935 N.Y.S.2d 106 [2d Dept 2011]). Having made a prima facie showing, the burden shifts to MDCI to defeat the motion with sufficient evidence to raise a question of fact as to whether there was a statutory violation and whether plaintiffs own acts or omissions were the sole proximate cause of the accident (Blake v Neighborhood Hous. Servs of New York City, 1 N.Y.3d 280, 771 N.Y.S.2d 484 [2003]; Bermejo v New York City Health & Hosps. Corp., 119 A.D.3d 500, 989 N.Y.S.2d 490 [2d Dept 2014]). MDCI has failed to do so.
Where a violation of Labor Law § 240(1) is a proximate cause of an accident, the plaintiffs conduct, of necessity, cannot be deemed the sole proximate cause (see Blake v Neighborhood Hous. Servs. of New York City, supra; Melchor v Singh, supra). Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation (see Blake v Neighborhood Hous. Servs. of New York City, supra; Melchor v Singh, supra). Thus, unavailing are MDCI's arguments that plaintiffs conduct of walking on the I-beam was the sole proximate cause of his accident, and that plaintiff elected to perform his job recklessly. To the extent MDCI attempts to invoke the "recalcitrant worker" defense, it has no application where, as here, no adequate safety devices have been provided (Stolt v General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650 [1993]). Notably, it has been held that "an instruction by an employer to avoid using unsafe equipment or engaging in unsafe practices is not itself a 'safety device'" (id.).
Moreover, it is not a defense to a recovery under Labor Law § 240 (1) that it was unnecessary for the plaintiff to walk across the I-beam to get the materials he needed to do the work (see Hagins v State of New York, 81 N.Y.2d 921, 597 N.Y.S.2d 651 [1993]; Birbuluis v Rapp, 205 A.D.2d 569, 613 N.Y.S.2d 414 [2d Dept 1994]; cf. Cordeiro v Shalco Investments, 297 A.D.2d 486, 747 N.Y.S.2d 194 [1st Dept 2002] [finding that defendants could establish plaintiffs conduct was the sole proximate cause of his fall if plaintiff needlessly used the beam as a shortcut and voluntary detour out of the garage, not serving any work-related purpose]). Additionally, "[i]t is well settled that the injured's contributory negligence is not a defense to a claim based on Labor Law § 240 (1) and that the injured's culpability, if any, does not operate to reduce the owner/contractor's liability for failing to provide adequate safety devices" (Stolt v General Foods Corp., supra at 920; see Bland v Manocherian, supra).
Hence, MDCI is absolutely liable, as it is undisputed that plaintiff fell from an elevated work site, and that no adequate safety devices were operating to prevent his fall. Therefore, plaintiff is entitled to summary judgment in his favor against MDCI on the issue of liability on his Labor Law § 240 (1) cause of action.